HH: I’m joined at the start of this wonderful week by Jon Kyl, the great Senator from Arizona. Senator Kyl, welcome back, and I hope you have a great Easter in the offing.

JK: Well, thank you, Hugh, same to you and all of your great listeners.

HH: Now Senator, it’s an interesting time for you. You’re in the last year of your long and distinguished career in the Senate. I wonder if nostalgia creeps around you all the time, or if in fact you’re too busy for that?

JK: (laughing) It is the latter. When you have a finite amount of time in which to accomplish a lot of different goals, the time goes by very quickly, and you try to stay focused. And that’s kind of where I am right now.

HH: Well, I want to start with you by playing for you something the President said, and I remind everyone that Senator Kyl’s been on Judiciary for as, have you been on it for all eighteen years?

JK: Yes, I have.

HH: Okay, so eighteen years of Judiciary hearings, and here is what the President of the United States said today about the Supreme Court hearing last week.

BHO: I’d just remind conservative commentators that for years what we’ve heard is the biggest problem on the bench was judicial activism or a lack of judicial restraint, that an unelected group of people would somehow overturn a duly constituted and passed law. Well, this is a good example.

HH: What do you think of that, Senator Kyl (laughing)?

JK: Well, the Wall Street Journal had a great lead editorial this morning answering that question. Liberals are very happy when the Supreme Court strikes down things that they don’t like. And they, of course, don’t call that judicial activism at all. And the Journal gave numerous examples of that, hailed by the Democrats as forward thinking, and the living Constitution, and all the rest of it you’re familiar with. But if the Court ever says Congress has gone too far here in stretching its authority under the Commerce Clause, whoa, couldn’t have that. That would be judicial activism. No, judicial activism in this case would be to affirm that the Congress has a right that the founders never intended it to have, namely to force people to buy something to create commerce so that then Congress can regulate it. That would be judicial activism.

HH: Senator Kyl, obviously you’ve hashed out the Commerce Clause jurisprudence issue many times in confirmation hearings. And given that background, what did you make of the arguments last week?

JK: You know, it’s hard to, obviously, nobody’s making predictions based upon the questions of the justices, but it’s clear that they were very much up on the arguments, they’d read the briefs, they were familiar with them, and it seemed like they were internalizing some of the points that were made there. But don’t read anything into a specific question by a specific justice is I guess what I would say. But they did focus very specifically on this question of whether you can create commerce in order to regulate it. That’s never been done before. It would be judicial activism for the Court to permit that. And in effect, the Court invited the lawyers for the government to draw a line to show some line that would be impermissible for the government to cross. They couldn’t do that.

HH: Now of course, when the President says a duly constituted law, that’s gobbledygook. Every law that’s ever been struck down has gone through both sides of the Congress and signed by the President, or overridden a veto.

JK: Sure.

HH: So that’s just absurd.

JK: Well, of course, and this law was adopted by the slimmest of majorities. Remember that when Scott Brown was elected to the U.S. Senate, the Democrats then lost the ability to pass the second piece of the law. And as a result, they had to resort in this procedural gimmick, in effect, with control of the House of Representatives in their hands at that time, with a reconciliation budget process, which then enabled them, with merely 51 votes, to get the second half of that passed by the U.S. Senate, because they no longer had the 60 vote margin. So this is a law that was very unpopular at the time, and it remains at least as unpopular as it was then, by at least a 2-1 majority of the American people.

HH: Now Senator Kyl, in addition to the President’s rather absurd statements today, he’s engaged in some not very absurd but very radical conduct including appointing people to jobs using his recess appointment authority when your body wasn’t actually in recess. What did you make of those?

JK: Well, that, too, will be litigated. The Republican Senators have all agreed to sign onto a brief that will argue the Senate’s position, which is we define when we are in recess. The President can’t do that. And it has always been the tradition that if you are just over a weekend, for example, less than three days is basically the tradition, the tradition that Harry Reid himself, the Democratic leader, has adhered to in the past when President Bush was in a position to do the same thing that President Obama did here, but did not do so. And so that question will be litigated. I think the Senate’s position will be vindicated. And I do think the hypocrisy of some of our Democratic friends here is pretty stunning, when on the one hand, they’re willing to say they get to define what a recess is when President Bush is in office, but once President Obama is here, take the lid off the pot and let him do whatever he wants.

HH: I want to turn to two subjects, Senator, again with which you have a lot of experience. One is spending, and the other is Defense spending as a subset of the former. I know you had hoped to accomplish more than the Gang of Six got done when you were a member thereof, but what do you see this year? Is it just a wait for the election season in the life of the Senate?

JK: No, as you know, I was very disappointed when the so-called Special Committee could not reach an agreement, because that meant that without some other action by the Congress, that there would be an automatic across-the-board cut not only in Defense spending, but in other discretionary spending as well. But half of it, unfortunately, comes from Defense. And the Secretary of Defense himself has said that that kind of across-the-board cut would be devastating. It’s called sequestration, and instead of having the Appropriations committees decide which programs deserve funding and which ones don’t, and how much, this is just straight across-the-board, irrespective of the merits of the program. So for example, you can now build 5/6ths of a ship, or you know, 5/6ths of an airplane. Well, that doesn’t work. So we’re trying to prevent the sequestration for the first year. And it will cost about $109 billion dollars in offsets. So we’re not trying to do away with the $1.2 trillion dollars in budget savings over the ten year period. We’re simply substituting one year’s worth of sensible spending reductions or offsets with the across-the-board reduction. There’s legislation in both the House and Senate that would do this. Senator McCain and I and others have proposed it. The budget of Representative Paul Ryan will ask six different committee chairmen to come up with their own specific pieces of that. And we’re hoping to get together with Democratic colleagues and work out $109 billion dollars worth of these offsets, which as I say, could prevent the across-the-board cut for at least next year.

HH: Now Senator Kyl, what did you make of President Obama’s whispered request for space, and his assurance of flexibility to President Medvedev last week?

JK: A couple of things. First of all, it does reveal that this President has a very specific agenda of what he would like done. And at least from my perspective, he’s not going to let the defense of the United States get in the way. Specifically, he’s not going to let missile defense get in the way. This is something that has always bothered the Russians, because they can’t intimidate us if we have a good missile defense. So what he is saying to them is look, after my last election, then I’ll have more flexibility to deal with you on missile defense, meaning that, I believe, he is saying he can make some concessions to them that he dare not talk about before the election, because the American people would never go along with him. Now what is he trying to achieve with these concessions to the Russians? He’s trying to get them to reduce even further the number of nuclear warheads that both countries have. This is his goal of getting the number down to as close to zero as he can. I’ve got a piece in the Wall Street Journal coming out tomorrow that will discuss my views on this, and what I think his real agenda is.

HH: And the conclusion of that, is there something Congress and the Senate specifically can do to prevent that this year from happening?

JK: He made specific promises to us at the time that the new START Treaty was ratified. And he would be going against those commitments. I don’t know what more you could do than ask him for commitments, he makes those commitments in writing. About all you can do is hold him to them if he breaches them. The problem is, he is saying is, well, that’ll be after my last election, so then you can’t touch me. Well, it may be that we can’t touch him in terms of his election, but his party can sure suffer as a result of his leadership of it, and his walking back on the commitments that he made to us. You know, if you pass a law that says you cannot negotiate lower levels with the Russians before the election, he can veto that bill. We can say that any appropriation process, no funds shall be used to do X, Y and Z. He doesn’t have to sign that appropriation bill. So it’s a little hard for Congress to prevent him from engaging in behind the scenes negotiations with the Russians.

HH: So Senator Kyl, last minute of our conversation, you know, the best answer is to unelect him and replace him with, whether it’s going to be Mitt Romney or Rick Santorum.

JK: Exactly.

HH: I know you’ve stayed out of that. But what do you think about the prospects for defeating President Obama?

JK: Well, I think that they are not that bad. I mean, some people think oh, just because he happens to lead either Santorum or Romney in today’s poll means that all is lost. No, it isn’t. The American people are going to be focused on two main things, and that is the gas prices at the pump, which they’re reminded of every time they drive past a gasoline station. And secondly, I think they’re going to very concerned about the state of the economy, still, at the time of this election, because we’ll still have record unemployment, and he’s not doing anything to get people back to work in this country. So those would be the two main things. It’ll be a referendum on his time in office, which has not been very successful. And then if something should happen abroad, when his real leadership and foreign policy is called into question, I think that could be the coup de grace. So I think there is a great opportunity for whoever the Republican nominee is to defeat Barack Obama. And from my perspective, it’s an imperative if we are to continue to be able to maintain our national security.